Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Penitentiary properly responded to a series of open records requests submitted by Randy Kiper, an inmate at that facility, on November 25, 1997. Mr. Kiper's six separate requests, and KSP's responses, are summarized below, along with our analysis of the propriety of those responses.
Request 1(a): How many 1997 grievances appealed to Commissioner Doug Sapp ended in favor of staff committee members, how many in favor of inmate committee members, and how many in split decisions:
Request 1(b): List of the staff of the Legislative Research Commission.
KSP responded that the first part of Mr. Kiper's request was not a request for records but a request for information that the facility does not maintain. Because public agencies are not required to create records in order to comply with the Open Records Act, KSP refused to honor this request. KSP also denied Mr. Kiper's request for an LRC staff list indicating that because it did not provide a time frame and because the membership frequently changes, the request was too vague.
In a follow-up letter to this office dated December 15, 1997, Department of Corrections staff attorney Tamela Biggs explained that although the grievance coordinator at KSP is required to maintain a log of the grievances filed and their status, the log does not "contain a running 'tally' of how many ended in favor of staff, inmate, or were split." Ms. Biggs reiterated that Mr. Kiper seeks information rather than access to specific documents, and KSP "cannot provide what it does not have, nor is it required to create a document to satisfy a request." With respect to Mr. Kiper's request for an LRC staff list, Ms. Biggs restated the facility's position that the request was "vague and overly broad . . . [in that it] does not provide a time frame . . . and staff at any state agency is not 'static.'" She expressed the view that Mr. Kiper's request should have been directed to LRC.
We affirm KSP's response to Mr. Kiper's request for the number of grievances appealed and how they were resolved. At page 3 of 96-ORD-150, this office upheld an agency's response to a request for information as opposed to records, explaining:
The Attorney General has long recognized that "the purpose of the Open Records Law is not to provide information but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. Although information may be gleaned from these records, it is the public agency's duty to make public records available for inspection and copying. Public agencies are not required to gather and supply information independent of that which is set forth in public records. As we noted at page 5 of OAG 89-81:
See also, OAG 81-333; OAG 86-51; OAG 89-77; OAG 90-19. Thus, the public is entitled to inspect public documents and to obtain information contained therein, but the fundamental purpose of the Open Records Act is to permit access to nonexempt records, and not to require the compilation of information.
Mr. Kiper did not request a copy of the grievance log. He requested that KSP compile information extracted from the log. KSP properly denied this portion of his request.
Turning to Mr. Kiper's request for an LRC staff list, we find that although the request should have been directed to the Legislative Research Commission, KSP mischaracterized it as too vague. The better response, in our view, would have been to invoke KRS 61.872(4), advising Mr. Kiper that KSP "does not have custody or control" of a current LRC staff list, and furnishing him with the name and location of LRC's official custodian of records. While it is certainly true that the staff of a state agency is not static, we believe that the agency satisfies its obligation relative to such a request when it provides the most recent staff list compiled. The problem here, of course, is that KSP is unlikely to maintain a current LRC staff list. Ms. Biggs acknowledged this fact in her follow-up response. Her only omission was in failing to furnish Mr. Kiper with the name and location of LRC's custodian of records.
Request 2: How many 1997 grievances concerning the mailroom were filed, and how many of these related to privileged mail, outgoing mail, incoming mail, and opening mail.
KSP denied Mr. Kiper's second request on the same basis as its denial of request 1(a), specifically that he sought information rather than records. Based on the authorities cited above, we find that this response was consistent with the Open Records Act, and affirm KSP's denial.
Request 3: How many 1997 grievance committee split decisions ended in favor of staff committee members and how many ended in favor or inmate committee members.
Again, we adopt our analysis of KSP's responses to request 1(a), above, and affirm KSP's denial of this request.
Request 4: All memoranda issued between November 25, 1996, and November 25, 1997, on the issue of opening legal mail.
In responding to this request, KSP advised Mr. Kiper that no such documents exist. We affirm this response. The Attorney General has, on more than one occasion, recognized that a public agency cannot furnish a requester with records which do not exist or which it does not have in its possession or custody. See, for example, 93-ORD-51 and authorities cited therein. We have also recognized that, in general, it is not our duty to investigate in order to locate records which the requester maintains exist, but which the public agency states do not exist.
However, in 1994 the Kentucky Open Records Act was substantially amended. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. "Although," as we have noted, "there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiries." 95-ORD-58, p. 3. Apparently, the issue of the opening of mail was not addressed in any formal, written manner by KSP officials in the past year. We have no reason to doubt KSP's assertion, confirmed by Ms. Biggs, that no memoranda relating to the opening of mail were generated from November 25, 1996, to November 25, 1997. KSP's response was proper and consistent with the Open Records Act insofar as it could not make available for inspection records which do not exist.
Request 5: Records relating to privileged legal mail that was opened in the mail room by mail room staff before being forwarded to the legal office to be signed for by the inmate.
Relying on KRS 61.878(1)(a), KSP denied this request advising Mr. Kiper that he could review only those records relating to his own legal mail. In her follow-up letter, Ms. Biggs explained that the facility would not release information concerning correspondence between an inmate and his attorney to another inmate. Acknowledging that KSP's response to this request should have been more specific, she maintained that the inmate's right of privacy relative to communications with his attorney was superior to the public's right to know that the KSP mail room is properly performing its function. We do not agree.
We begin by noting that Mr. Kiper did not request access to the legal mail itself or the contents thereof. Instead, he requested records documenting instances in which privileged legal mail was improperly opened by mail room staff before it was sent to KSP's legal office. If such records exist, we believe that the public's interest in insuring that the mail room properly executes its function outweighs the inmate's privacy interest in documentation reflecting the improper handling of his privileged mail.
In 97-ORD-17, this office analyzed recent privacy case law, and the test for determining the propriety of an agency's reliance on the privacy exception which was developed in that case law. It is instructive to quote from that decision:
Although Kentucky has no privacy act, the Open Records Law recognizes that disclosure of personally identifiable records in the hands of public agencies may implicate privacy concerns. KRS 61.878(1)(a) permits public agencies which receive open records requests to withhold:
In 1992, the Kentucky Supreme Court analyzed this provision in great depth, and departed from earlier open records decisions by declaring that the Act "exhibits a general bias favoring disclosure. " Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992).
The court began its analysis with the proposition that "the public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory function." Id. Continuing, the court observed:
Id. The court also recognized that the existence of the privacy exemption "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion by unwarranted public scrutiny." Id.
Drawing on these fundamental principles, the court articulated the following standard for determining if a record may properly be excluded from public inspection pursuant to KRS 61.878(1)(a):
Board of Examiners at 327-328. In closing, the court admonished that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." Id. at 328.
In Zink v. Commonwealth of Kentucky, Ky.App., 902 S.W.2d 825 (1994), the Court of Appeals was again presented with a challenge to an agency's invocation of the personal privacy exemption. Echoing the rule announced in Board of Examiners , the court elaborated on its "mode of decision":
Zink at 828. Applying this standard, the court concluded that the Commonwealth of Kentucky, Department of Workers Claims, properly relied on KRS 61.878(1)(a) in denying an attorney access to injury report forms filed with the Department which contained marital status, number of dependents, wage rate, social security number, home address, and telephone number.
97-ORD-170, p. 5-7.
While it is certainly true that an individual has a legitimate expectation of privacy in the contents of correspondence which is addressed to him, and indeed that this expectation of privacy may be heightened when that correspondence relates to the recipient's legal affairs and is prepared by his attorney, we do not attach great weight to the individual's privacy interest in records reflecting the improper opening of that mail by the KSP mail room. It seems unlikely that such records, if they exist, would disclose anything more than name of the sender, the name of the recipient, the date of receipt, and the identity of the mail room employee who opened the letter. Information pertaining to the identities of the sender and recipient, although not entirely devoid of privacy implications, can not be characterized as information which "touches upon the most intimate and personal features of private lives." Board of Examiners at 328.
Conversely, the public interest in disclosure is a significant one. As the Court of Appeals noted in Zink , "the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principle purpose of the Open Records Act. " Zink at 828. "At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing." Zink at 829. Disclosure of records reflecting instances when privileged legal mail was improperly opened by mail room staff, if such records exist, will subject KSP's actions to meaningful public scrutiny. In our view, this public interest in disclosure is superior to the minimal privacy interest which the recipient may have in records reflecting improper opening. The fact that Mr. Kiper is an inmate at KSP has no bearing on resolution of this appeal inasmuch as "our analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request. The Legislature clearly intended to grant any member of the public as much right to access to information as the next." Zink at 828. If KSP maintains a record reflecting improper opening of privileged mail, it is directed to furnish Mr. Kiper with a copy of that record upon receipt of copying charges. KSP is not obligated to disclose privileged legal mail addressed to other inmates housed in the facility.
Request 6: All rejections notices issued to Mr. Kiper by the mail room from November 25, 1992, to November 25, 1997.
KSP denied this request on the basis of KRS 61.872(6) indicating that "this request would cause an unreasonable burden on mail room staff as well as disrupt the processing of mail thus delaying it past the 24 hrs. time limit stated in CPP 16.2." Ms. Biggs elaborated on this position in her follow-up letter to this office. She explained:
Two full-time staff members are processing between 1,600 and 2,000 pieces of outgoing mail and between 1,900 and 2,100 pieces of incoming (excluding bulk or religious mail, magazines, catalogs) mail per day. These employees are also preparing certified mail for staff and inmates, inspecting mail and packages for contraband or unauthorized items and filling out the appropriate logs regarding receipt of legal mail and rejection of certain letters or items. Approximately 100 rejection notices are issued each month. November and December are traditionally the busiest months for the institution's mailroom, causing substantial increases in the aforementioned numbers. An employee would have to be pulled from these duties to manually go through approximately 6,000 rejection notices. It is estimated that this process would require at least two days to complete. Departmental policy requires the delivery of mail to an inmate within 24 hours of receipt, except weekends and holidays. Therefore, it is the Department's position that it would impose an unreasonable burden upon the mailroom and its staff to produce the requested rejection notices.
We agree.Again, we find it instructive to quote from a recent open records decision in 97-ORD-46 we analyzed KRS 61.872(3). That statute provides:
(3) A person may inspect the public records:
In the cited decision, we observed:
The Open Records Act . . . contemplates records access by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. Thus, a requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. A requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52; 96-ORD-186.
KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by on-site inspection, KRS 61.872(30(b) requires the requester to " precisely describe []" the records which he wishes to access . . . [by receipt of copies].
. . .
A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite," Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963) . We believe that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific, and unequivocal terms the records he wishes to access by mail.
97-ORD-46, p. 2-4.
Assuming that the requester satisfies the requirement that he "precisely describe" the records he wishes to access by receipt of copies, we move to the next requirement, namely whether the records "are readily within the public agency. " In 97-ORD-46, we examined this language:
This third requirement, as we understand it, permits public agencies to avoid the duty to mail copies if the requested records are widely dispersed or otherwise difficult to access. In such instances, agencies would be forced to make extraordinary efforts to identify, locate, and retrieve the records in order to copy and mail them to the applicant. Consistent with the rule that "[public] agencies and employees are the servants of the people . . ., but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time," OAG 76-375, p. 4, we believe that if the records which the applicant requests to access by receipt of copies through the mail cannot be readily accessed and retrieved within the public agency, the agency cannot be compelled to deliver copies to him though he resides and works in a county other than the county where the records are located, and he precisely describes them. Under these circumstances, the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours. KRS 61.872(1); KRS 61.872(2); KRS 61.872(3)(a); OAG 90-19; 97-ORD-12.
It is, however, incumbent on the agency to indicate, in at least general terms, the difficulty in identifying, locating, and retrieving the requested records.
97-ORD-46, p. 5.
Mr. Kiper requested copies of rejection notices issued to him by the KSP mail room in a five year period. We assume that this is the only mode of inspection available to him, given the circumstances of his confinement. Although it is clear that his description of the records he wishes to access by receipt of copies is sufficiently precise, it is by no means clear that those records are "readily available within the public agency. " Ms. Biggs painstakingly documents the difficulty associated with retrieving these records, and the resulting disruption of the essential functions of mail room staff. In so doing, she sustains KSP's burden of proving, by clear and convincing evidence, that Mr. Kiper's final request places an unreasonable burden on the agency. Compare 97-ORD-46, p. 6. ("In the absence of any evidence supporting this base allegation that responding to the request will pose a financial and personnel hardship, we are left with no alternative but to conclude that the records are readily available within the agency.") We therefore affirm KSP's denial of Mr. Kiper's sixth and final request.
In sum, we find that Kentucky State Penitentiary properly denied three of Mr. Kiper's requests on the basis that he did not seek specific documents, but instead sought information relating to grievances that the facility does not maintain. KSP also properly denied his request for nonexistent memoranda pertaining to the opening of legal mail. Although it is a closer question, we believe that KSP presented clear and convincing evidence that Mr. Kiper's request for copies of rejection notices issued to him by the mail room during a five year period places an unreasonable burden on KSP staff, and affirm its denial of this request. We do not, however, affirm KSP's denial of his request for records reflecting the opening of privileged mail by mail room staff. Because Mr. Kiper did not ask to examine the content of that legal mail, the record which he did ask to examine should contain information that is relatively nonpersonal in nature, and there is a significant public interest in insuring that a state correctional facility properly executes one of its many functions, we find that that public interest in inspection of the record is superior to the minimal privacy interest in nondisclosure. If KSP maintains a record reflecting the improper opening of privileged legal mail, it must furnish Mr. Kiper with a copy of that record.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.